Part Two

THE COMMERCIAL SALE

Objectives
• Define the Commercial Sale
• Formation of Commercial Sale
• The difference between commercial sale and civil Sale
• Types of commercial Sale
• Seller’s Obligations
• Buyer’s Obligations
 What is commercial Sale ?

Art (93-107) of Omani Commercial

The Law.
Commercial The purpose of the commercial
Sale sale……(the commercial sale and the
civil sale)
Should the commercial sale be done
by a trader ?
What is commercial sale?
It is not defined in the Commercial Law. But the sale is defined
generally as: it is a contract between two parties (the seller and the
buyer). According to this contract, the seller will be bound to deliver
something to the buyer and transfer its ownership, at the same time
the buyer will be bound to give the price to the seller.

But it is important to remember that the purpose of the commercial

sale is to achieve profits. This factor differentiates the commercial sale
from the civil sale.
 The elements of the commercial Sale

Can a seller sold thing which does not belong to

Formation of him ?
commercial
sale
the seller would be bound to buy it and sell it again to the
buyer. Otherwise, the buyer can ask for compensation…(Art
98)
• Omani Law allows to sell a thing which is not currently available as
long as it is possible to be available in the future…(Art 100 of OCL)

The price should be specified in the contract. Or, at least, the contract
should contain terms describe how the price is specified. Such as,
mentioning a third party to specify the price, adopting the price in
markets or adopting the price of the unit…(Art 103 of OCL).
The price should be specified in the contract
or the contract should contain terms describe
how to specify the price
(E.g., adopting the price in markets or adopting
the price of the unit )

If the parties did not specify the price or if

they did not mention the way how to specify
the price, that does not mean one of them
wants to make donation to the other party. In
this case, the price is specified by the custom,
otherwise the court will specify it.
Some types of commercial sales

1- The sale through a sample

It depends on a sample .

The seller should deliver a thing sold contains the

same quality and descriptions of the sample.
 ⑧
What will happen if the sample is destroyed while it is under hand
one of the parties and the other party claims that the quality or the
-

descriptions of the thing sold is different from the sample?

-
-
&
-
 #
5 If the seller delivered a
- thing different from
& the sample

The first party should

prove that both of them
-

are similar and there is no

*1-rescind
The buyer can
-

the contract
-
-
difference. 2
↳
(s 11 ,
5 jiba)) or
2- He may ask to
-

decrease the price

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Sale upon ⑧
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• A sale upon trial is deemed to have been made subject to a
suspensive condition of acceptance of the thing sold, unless it
-

appears from the agreement or from the circumstances that the

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sale was made subject to a resolutory condition.

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The sale subject to tasting

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-1541551
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He must declare his
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The purchaser may accept

acceptance within the time
the thing sold if he sees fit.
fixed by the agreement.

If there is no agreement the The sale will be considered

time is specified by complete only from the
custom. date of such declaration.
CCG are
11)
I's)
E The obligations and the rights of the parties of the sale
contract

Obligations of the seller

1) To transfer the ownership L
In general, the ownership is transferred from the seller to the buyer
when the contract is concluded.

However;
If the contract needs to make formal procedures (E.g., if the thing sold
was real estate), the ownership is transferred when that procedure is done.

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2- To deliver the thing sold

&
-

The delivery occurs by :

1- Enabling the buyer to take the thing
sold without hindrance(obstruction).
Usually, the delivery happens at the
time of transferring the ownership.

2- The delivery is concluded according

to the conditions of the contract. &$1
⑧
Otherwise, the custom will regulate it . & S

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I The delivery is (actual) or
(constructive)
--

The actual method is concluded by delivering the thing sold by hands. (movable
property, the delivery is concluded by handing it to the buyer. $
- 2- -
This happens if the nature of the thing sold accepts delivery by hands such as the
things which are estimated by weight.

If the thing sold is immovable property (real estate), the seller delivers it by
vacating it and enabling the buyer to obtain it. (e.g. a house, it is delivered by
vacating it and handing its keys to the buyer )

It may be concluded figuratively

( If the seller hands the keys of the store to the buyer, or if the seller
delivers the bill of lading to the buyer )
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 It happens with legal disposal (without
physical action)
2- The
constructive
-
delivery It happens when the parties conduct
-

jost themselves as if a transfer of property has

occurred without an actual transfer.
E.g. a case of the delivery by
acknowledgment ; pick up a parcel on behalf
of your friend and agree to hold on to it for
him. Enji s 5 + -I
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The Time of -
Delivery
The time of delivery &

If there is no
& =
-

is specified as 1- By the agreement -

follow:
-
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-
agreement : &

&

If there is a specific season for

2- The thing sold should be
- the goods, the delivery should
delivered at the time of
-

=> occur before the season is

formation of the contract.
-
-

- terminated.
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& 98
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5 (j) 0 &, $ 80
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If the seller did not deliver the thing sold at the time which the parties
-

agreed upon: =>

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Or ; (2 )The buyer has the (even if the new.
- price is
right to get a thing similar to
-
1-The buyer can rescind
&

-
-

more than the price which

the contract without the thing which the parties -
they agreed upon).
·
-

notification. agreed upon and the seller -

-
But- in this case, the seller
-

should
-
pay the price .
-
should be notified.
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Or; (3) The buyer can claim to carry out the contract and get
the thing which they agreed upon.
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 ⑧ true
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1- The buyer either claims to=
reduce the price or demands to

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complete the deficiency.
-

(But if the difference was harmful, the buyer can claim to

rescind the contract) &

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ab)0)
Note: the right of reducing the price or rescinding the
2004- -
.

contract comes off after one year of the actual

-
delivery.
·

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Omani law : if the thing sold needs measure or weight, the

L &
-

expenses of these actions will be borne by the seller

-
unless there
is-
an agreement or custom provides otherwise.
 Destruction of the Thing Sold
E ⑧ -
-

E
S

=>
-
-
The destruction of the thing sold is discussed before the
delivery, not after it. r

Why ?
It is known that the destruction after the delivery is borne by C
- 7

⑧
the buyer.
-

-
·
If the delivery is concluded correctly, the seller will not be
- - -

liable for the thing sold after the conclusion of the delivery
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Exceptions
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The⑧
seller will remain liable (exceptions):

1- If the destruction occurs because of his mistake.

- -
·
2- He will be liable if the destruction occurs due to a cause that refers to the
-

-
true/false
time when the thing sold was in his ownership such as the hidden defect.
-
-

&
If the seller notified the buyer to collect the thing sold at the time which they

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-

agreed upon and theO

buyer ignored this notification, the buyer in this case
-

will be liable but not the seller.

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21
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 It means that if there is any hidden defect in the thing sold,
the buyer refers to the seller either to reduce the price or
to rescind the contract.
The buyer should refer to the seller immediately when he
discovers the defect, otherwise he will be deemed
② accepted the defect.

3- To guarantee
the hidden defect The defect should be: old, hidden and effective.

-
Omani Law gives the buyer one year to claim for the
hidden defect starts at the time of delivery.

After the year lapses the buyer can not claim even if he
finds a hidden defect.
 *
1- To pay the price

&
The price should be paid at the place of delivery
unless there is a custom or there is another
Obligations of
agreement between the parties.
If it is not paid at that place, it should be paid in the g
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the buyer
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-
place of the buyer. s,
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Note: The seller has right to retain the thing sold if the i
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buyer does not pay the price.
-

And the buyer has right to retain the price if the seller G
refused to deliver the thing sold.
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This is because the sale contract is bilateral contract .

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 ② The buyer should collect the thing sold at the time and
-

the place which the parties agreed upon.

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2- To If there is no agreement, they should follow the custom.

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collect the If the custom is also devoid of rule:

I'36)

thing sold Omani Law provides that the buyer should collect it
at the place where the thing sold exists at the time
of formation of the contract.
The expenses of collecting the thing sold is borne by the
buyer unless there is agreement or custom provides
-

otherwise.
CONTRACT OF
CARRIAGE OF
GOODS

Part three
Objectives

X
Define Contract of Carriage of Goods
Characters of contract of carriage of Goods
The formation of contract
How to prove the contract of carriage of goods
The obligations of the consignor
The Obligations of consignee
The Obligations of the carrier
# ↳
E
/
-

Art 156 of Omani Commercial Law

· An agreement whereby the carrier

F
CONTRACT
OF
-

CARRIAGE undertakes to carry goods or

OF GOODS
persons from one place to O
another
-

E
by a means of-
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- = -

-
transport in return for
-

a=>
fee
 Characters of contract of carriage
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82 -
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O The carrier is debtor &

-

It =
is bilateral contract --
-
&
He is creditor
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-

(each party in this

⑳
( He will carry the person
&

contract is a- creditor and

&

-
> ( the other party has to &

or the goods from place

& -
T

&
&

debtor)
&

⑳
give him the fee)
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↑

-
= to place)
- &
-

The owner of the goods or

↑
& at the same time, he is If one of the parties did not
-
the passenger· is debtor
↑

creditor - perform his duty, the other

②
7

-
party can rescind the
(-
because he has to pay the ( the carrier should carry
-

contract and demand for

fee ) him or his goods)
- &

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--
-& compensation.
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Consideration

The contract of carriage is based upon

↑

consideration .
-

What does this mean ?

 Consideration s 1*
24 51 *

This means each party will get a consideration in return for what he gives.
The carrier will get the fee, the other party or the goods of the other party
will be carried to the destination.

*
&
S
The fee may not be equal to the service
-

(The fee may be less than the value of the carriage),

= - -
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but the fee should

-- & -
exist in this contract. Est
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What will happen if the agreement is devoid
,

of the fee ?
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5 = 30
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1- It will not be deemed a contract of carriage.

-

-[1 0 80m *
2- The carrier will not be liable about the safety of the goods or the
-
passenger.
=>
⑧
⑧or any other thing. It depends on the agreement.
Note : The fee may be money
 -,S

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It is a commercial
The contract of
contract for the =
For the other party, it may, or may not,
carriage is be deemed a commercial contract
-

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carrier ( he always

O
commercial (depending on the nature of the
aims at achieving
-
N

contract: -

profit) - transaction).
-

& 5 810)
If the other party is a -
trader and the
contract of carriage is related to his
- If the other party -
is civilian
- person, the
commerce, then the contract is &
contract is deemed a civilian contract.
--

deemed commercial contract for him.

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 pals a
This contract is concluded by the mutual consent and there is no
- -

formal element.
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The general rules of the formation of the contract are applied.
accptens Sub
- -

offer
The parties of the contract of carriage of goods are two: the carrier
and the consignor.
- -

Sometime the contract may provide to deliver the goods to a

The
1541361
-

O
consignee. But this person is not a party in the contract. The third ↑

-
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formation
O
$ person usually appears in the international sales such as C.I.F sale &
-

-NI
&
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&
and F.O.B sale. S -

of contractColl The principle is that the effect of contract of carriage of goods is

-
Oh
s

-S to be between the parties of the contract (the carrier and the

1) consignor).

3 s 5 S

[ J
S
But sometime the law may bind the third person (the consignee)
to perform something such as collecting the goods from the
carrier.
 X
What are C.I.F sale and F.O.B sale?
 ↓
• It is a fundamental principle that the effect of contract of carriage of

S
goods is to be between the parties of the contract (the carrier and the
consignor). But sometime the law may bind the third person (the
consignee) to perform something such as collecting the goods from
the carrier.
Proving the contract of carriage of goods
• The &
carrier usually issues a document contains information about the
contract#(Bill of carriage). & as = - / 5 1

• This document is a tool-

to prove the contract of carriage of goods.

•-This bill is not an element in the contact and the law does not bind the
-

parties to issue it. -S

&

S
- &

• Thus, if the carrier did not issue this bill, the parties can prove this
contract by any method of evidence. Why ? This is because, as
-
abovementioned, this contract is a commercial contract.

( - 5) S
T
 -
&
This bill represents the carried goods. Thus, if this bill is delivered to a
-

foreigner
-
party, that means this party
> becomes the owner of the goods.

The bill of carriage may be drawn up in the name of a specific person or to

-

his order or to the bearer. The bill shall be negotiable according to the rules
- -

of transfer if nominal and by endorsement(approval) if made out to order

and by delivery if made out to the bearer. ·sl G
-
-

If-
the parties did not write this bill, the consignor can demand a receipt from
the carrier. This receipt should contain the date of issuance and enough
-
information about the goods…Art (160) of OCL.
1615 : 152

-
This receipt will take the place of the bill of carriage in evidence.

5) m
24x
15 -
 S &
Effects of contract of carriage of
goods
+
05 5)
-

& &

The obligations of the consignor

-

1--
To deliver the goods to the carrier

This delivery should happen at the place where the parties agreed upon.

If they did not agree on the place, it should happen at the place of the
carrier…Art (161) of OCL.
 - i s wid)
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If the parties agree that the delivery will be in a place different from
the place of the carrier ( The consignor should bring the goods to that
-
place, and he will bear the expenses )
>

If the goods need specific tools in carriage, the consignor should

inform the carrier about that before the time of delivery. (For example,
the goods may need fridges).
spiosis
The consignor should pack the goods in good manner which suits with
the circumstances·
and may be broken easily.
- -
-
J
of the trip, particularly when the goods are sensitive
N

-
 &
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If the goods are not packed well or if there is defect in the pack :
--

ad1- TheO
-
carrier has the right to ask for good pack. as)

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2- He
- can stop carrying the goods.
 -

• If theO
pack was bad and the consignor insisted to deliver it in this
conditions :
-

-4(25 10)%Ssx2)' .
.

The carrier can write this insistence in the bill of carriage.

-

In this case he will escape from liability of destruction which may

-
happen as a result of this bad pack
>
-

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E
-

&
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& .

-
2- To pay the fee
Agreement ( the fee and the time of payment of the fee. )
-

If the parties agree that the fee will be paid by the consignee, then the
consignor and the consignee are jointly liable about this fee…Art
(162) of OCL.
&
- 35261003
If the goods need expenses
-
during the trip, the consignor has to pay
them to the carrier.
-

The amount of these expenses depends on :

1- The nature of the goods
-
2- -
The period of the trip.
OCL gives the consignor and the consignee the right to stop paying the fee if
the goods are destroyed due to=
force majeure during the trip
gadaa50
& &
I

• If the consignor, during the trip, asked the carrier to return the goods to
-

&
11
him or to deliver them to another consignee :
E
- &
-

-- &

- S
& (1) #

1- The consignor will bear the expenses of that, and

~

-
2- he will compensate the carrier if needs arises.

• If the consignor did not pay the fee, the carrier can retain the goods until
he gets it.
ES
What does force majeure mean ?
-
Of The right of disposal in the goods

The owner of the goods (the consignor) has the right to

-

:
=
I
&
--in the goods during the trip.
dispose

& (e.g., he can sell them via the bill of carriage if he finds
-
a buyer who pays good price).
-
 -
&
Obligations of consignee
s I
⑳
- s
Generally, the consignee does not have obligations because he
is not a party in the contract.
-

But ;
E
The consignee shall be liable for the obligations arising from
-
-

the contract where he accepts expressly or impliedly. 1)

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yars
- -

-
In this case, he will be liable to collect the goods at the time
which
-
the parties agreed upon.
 =Obligations of the carrier

s
T

1- To collect the goods

The carrier has to collect the goods in the place of the

-

carrier, or in the place which is specified in the contract.

---
-

--
This will happen at the time which is also specified in the

-
contract.
&
 ⑧
The carrier should not refuse to collect the goods as long as it is the same
-

O
-

goods which they agreed upon.

-
( If he refused, he will be liable )
-50
-

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- j
At the time of collecting the goods, the carrier should check the goods
- -

(4) S !
-- &
to make sure of its conditions and quantity.

This may require removing the cover and the pack.

&
-)

If he does that, this should happen in the existence of the consignor or
---

his proxy.
-
 -
2- To ship and stow the goods

O -
• Shipping the goods means putting them on the carriage means.
-

• Stowing the goods means arranging them and putting them in the suitable
-
places on the carriage means.
-

-
-

• Shipping and stowing the goods are responsibility of the carrier.

But the parties can agree that the consignor does them. If heO
-
(the consignor)
did that in bad manner, the carrier can stop performing the carriage
-
The carrier is liable about the destruction which may happen
during the shipping if :
--

1- It comes as a result of his mistake.

-

2- If the mistake happens due to mistake of workers or

companies
- specialized in shipping belong to him.
- -

Shipping and stowing the goods should happen at the time

which the parties agreed upon.
-

If they did not specify the time, they should follow the
②
-

custom.
&
=>

dg6
 & 3- To transport the goods
-
&

The carrier is bound to perform his duty by a suitable means which should
suit with the nature of the goods.

( If the goods are fruits and vegetables, the means of carriage should include
containers with low temperature)

Safety of the goods during the trip until arriving the destination.
-
-
-
If the sky rained during the trip, and some of the goods damaged due to
rain?

Who will be liable about the destruction of the goods? Why ?

the goods.
·
In this case the carrier will not be liable even if there is destruction in
=>

Generall condition
The carrier should follow -
the agreed route. If this route is not specified in the
contract, the⑧
-
law binds
↑ him to follow the shortest route… Art (167) of OCL.
0
2 3i ,

If he followed a route different from the route which they agreed upon, or if he followed a
-

⑦
long route, he will be liable about the destructed goods (if there is destruction).
-
-

&
-

⑧
&

He also will be liable if the goods arrived in a late date.

-
①
E 5 1 5

&
Despite that, the law allows to the carrier to change the agreed route if there is necessity
to do so, such as if the sky rained heavily .
--
-
-

In this case the carrier will not be liable even if there is destruction in the goods.

fource mager
4- To discharge the goods
-
-
②
The carrier is bound to discharge the goods and will bear its expenses.

But the parties may agree that the consignor or the consignee performs this
duty. In this case, if a destruction happens to the goods during the
C

discharging procedures, the carrier will not be liable about that.

- -

b) 25/0s-I
2!
.

31
S

25 -
 5- To deliver the goods
• In this obligation the carrier ends his duty.
-

A
• When the carrier does this obligation, he should demand a receipt from the consignor or the
consignee. A
-
- - -

#
0
This receipt will be a proof indicates that the duty of the carrier is done. -I
Or: *
• The carrier can ask the -consignor (or the consignee) to write on the bill of carriage a statement
-
-
indicates that he received the goods. *
-
&

• The consignor should come at the· ⑧the goods.61 &S

time of arrival to receive - ↑
• If he did not come, &
the carrier has to inform him that the goods arrived. ↑
- -
=
• If he did not come, the carrier can transport the goods to the place of the consignor in return for
-

extra fee.
-
· &
D 1ba1.
 15
·
Thank You